CHL Bogusness.

[txinvestigator]

No presumptions. There is a required culpable mental state associated with every element of the offense

No, there is not.,

and the prosecution has the burden to prove every element including the requisite culpable mental state

Absloutely correct.

In the case of section 30.06, the requisite culpable mental state for all elements is recklessness. As applied to the sign element, that means you either have to know about a legal sign or be aware of but consciously disregard a substantial and unjustifiable risk that there is a legal sign.

Negative. 30.06 lists no Culpable mental state.

Section 6.02 of the Texas Penal Code tells us that not all offenses are required to have a CMS

Sec. 6.02. REQUIREMENT OF CULPABILITY. (a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.

30.06 appears, to me, to dispense with a mental state as it lists specific requirements for the signage and what constitutes notice.

 

[Dallas239]

No, there is not.

Recklessness.

Negative. 30.06 lists no Culpable mental state.

It doesn't have to

Section 6.02 of the Texas Penal Code tells us that not all offenses are required to have a CMS

What 6.02 tells us is that all offenses have culpable mental states, "unless the definition plainly dispenses with any mental element."

30.06 appears, to me, to dispense with a mental state as it lists specific requirements for the signage and what constitutes notice.

I don't see any language in 30.06 that "plainly dispenses with any mental element." Strict liability offenses in the penal code are fairly rare, and there must be clear evidence of legislative intent. This isn't an offense against the public morals, in favor of the public welfare, or against children (just some of the possible factors). Here's one case on the issue of strict liability and Section 6.02 where the Court of Criminal Appeals stated that

Accordingly we hold that a court must look for a manifest intent to dispense with the requirement of a culpable mental state, and that the silence of a statute about whether a culpable mental state is an element of the offense leaves a presumption that one is.

In the absence of an express intent to dispense with the requirement of a culpable mental state, we next ask whether such an intent is manifested by other features of the statute.

I don't see any such manifest intent. It may be arguable that strict liability applies to the construction of the sign, but I don't see any evidence of intent to apply strict liability to the actions of the trespasser.
By way of comparison, in West v. Texas, 67 S.W.2d 515, 516 (Tex.Crim.App. 1978), the Court of Criminal Appeals found that Section 30.05 requires a culpable mental state even though there is none stated in the text.

 

[Greg_TX]

Also I may have misinterpruted what my instructor said but, when the topic of drinking and carrying came up, I remember him saying there was zero tolerance for drinking while carrying.

I heard the same, and it was also a question on the written test. It was worded strangely, in such a way that you could answer either way depending on what the instructor told you. It was something like "ZERO TOLERANCE: there is no longer a legal limit of intoxication for an armed license holder that has been drinking." ** That could suggest either the limit is "zero" and any degree of intoxication is moot, or it could be read literally to mean that there is no longer a limit that applies specifically to an armed CHL holder.

Given the possibility of having to make a life or death decision while armed, you have to be able to think clearly while under extreme stress - knowing that someone's about to get shot is a real buzz-kill. I don't think a beer or two with dinner should necessarily be a bad thing, though. I'm not much for going out anyway - the beer and tequila is a LOT cheaper at my house.

** Champion Firearms - The Written Test - not an authoritative source, but I do remember the question.

 

[txinvestigator]

Recklessness.
It doesn't have to
What 6.02 tells us is that all offenses have culpable mental states, "unless the definition plainly dispenses with any mental element."
I don't see any language in 30.06 that "plainly dispenses with any mental element." Strict liability offenses in the penal code are fairly rare, and there must be clear evidence of legislative intent. This isn't an offense against the public morals, in favor of the public welfare, or against children (just some of the possible factors). Here's one case on the issue of strict liability and Section 6.02 where the Court of Criminal Appeals stated that I don't see any such manifest intent. It may be arguable that strict liability applies to the construction of the sign, but I don't see any evidence of intent to apply strict liability to the actions of the trespasser.
By way of comparison, in West v. Texas, 67 S.W.2d 515, 516 (Tex.Crim.App. 1978), the Court of Criminal Appeals found that Section 30.05 requires a culpable mental state even though there is none stated in the text.

I disagree with your application of 6.02 to 30.06.

But let's presume that your application is correct. According to 6.02, since no mental state is listed then any of the three mental states, intentionally, knowingly, or recklessly would apply, not just recklessness.

 

[txinvestigator]

I heard the same, and it was also a question on the written test. It was worded strangely, in such a way that you could answer either way depending on what the instructor told you. It was something like "ZERO TOLERANCE: there is no longer a legal limit of intoxication for an armed license holder that has been drinking." ** That could suggest either the limit is "zero" and any degree of intoxication is moot, or it could be read literally to mean that there is no longer a limit that applies specifically to an armed CHL holder.

The question on the test reads, "there is no legal limit of intoxication for a CHL holder carrying a handgun after drinking alcohol." And it is TRUE. There is no "legal limit". The CHL laws simply state that you cannot carry while intoxicated.

There are two definitions of intoxication in Texas;

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.


The .08% is a presumed level of intoxication, not a "limit". A person below .08% can be intoxicated using definition (A).

Since you will not be offered a blood alcohol test for a UCW-License Holder-Intoxication, charge, definition (A) will be used.

The media's misuse of the term "legal limit" is responsible for the confusion with this question. The .08% is not a limit at all. The "legal limit" term is used to describe the BAC of a person invloved in a drunken driving offense, but the term is incorrect. A person below .08% can be convicted of DWI. In fact, a person with a ZERO BAC can be convicted. (think drugs).

To prove intoxication the court can establish it under (A), a subjective and more difficult to prove definition, or show that the person had a BAC of .08% or greater. .08% IS intoxicated with no subjectivity.

Make sense?

By using the phrase "ZERO TOLERANCE" Champion is making it sound like ANY amount of alcohol is a violation; that is simply not true.

 

[Greg_TX]

Makes sense. I still find the words "no longer" interesting - they imply that at one time there was a limit.

Thanks ...

 

[Dallas239]

I disagree with your application of 6.02 to 30.06.

That's fine. It doesn't really matter which, if either, of us is correct as neither of us (I assume) is a judge. But the judge is most likely going to follow binding precedent from the Court of Criminal Appeals. (To which I should add that my research here has only been cursory and to satisfy academic curiosity. No one should rely on anything posted in this thread-or anywhere on the Internet for that matter-as legal advice. For legal advice, hire a lawyer.)

But let's presume that your application is correct. According to 6.02, since no mental state is listed then any of the three mental states, intentionally, knowingly, or recklessly would apply, not just recklessness.

You're absolutely correct, and I should have been more precise. Recklessness is just the minimum required. Intentional and knowing are higher degrees of culpability than reckless and thus will always satisfy an element where recklessness is required. I think the salient point for the purpose of this discussion is that criminal negligence or less will not suffice.

 

[txinvestigator]

Makes sense. I still find the words "no longer" interesting - they imply that at one time there was a limit.

Thanks ...

Those words are not in the test. I wrote the test question directly from the test word for word.